Precaution or perversion: eight harms of the precautionary principle

June 23, 2010

The precautionary principle is frequently invoked in relation to drugs laws. The argument goes like this: if we are unsure of the risks of harms of a drug then it is safer to ban it as a precaution rather than wait until harms become apparent. As a principle, it is based on the supposition that since there are assumed to be no benefits of “illegal” drugs then banning them will have no downside or ‘disbenefits’ with the anticipated result that the banning of them will be beneficial to society and to users.

At face value, the precautionary principle seems reasonable but, as I argued in the Eve Saville lecture at the Centre for Crime and Justice Studies last year, it is fraught with hidden harms and injustices especially if applied in an unthinking and arbitrary manner.

Here are eight examples where the precautionary principle with drugs falls down:

1. Increases personal harms
The penalties enforced in the banning legislation may cause more harm than the drug itself: a criminal record or even imprisonment for cannabis possession will almost certainly be more damaging to the individual and society than the drug itself. Criminalising users to deter them and others is the central plank of the current legislation that makes cannabis a Class B drug and the explicit reason why it was regraded up to Class B last year. This damages users who are caught in possession as it limits their career opportunities and is particularly hurtful to those using for medicinal reasons. It also costs the public purse large amounts through police and court time and prison costs – which was one reason why cannabis was downgraded to Class C in the first place!

2. Distorts markets to greater harm to society
When precaution results in a variety of different drugs being made illegal then markets and competition between them develop. There are incentives for drug dealers to sell the most profitable, most addictive and least likely to be detected drugs. This pushes the market in the direction of drugs such as heroin and crack which use small volumes and have no odour and away from cannabis which is bulkier and smelly. The harms of the former are much greater than those of cannabis yet the penalties for possession and supply are similar [7-v-5 years and life-v- 14 years respectively]. There are examples of young people initiating illegal drug use with heroin rather than cannabis simply because cannabis is harder to get hold of and deaths have been the result.

3. Impossibility to refute
When the precautionary principle is used to deal with a concern for health effects of drugs, such concerns can never by fully allayed since any drug can be associated with harms of some sort if widely enough used. There is therefore always justification for maintaining precautions and keeping drugs illegal. This was the basis of the last government’s decision to keep ecstasy Class A even though the evidence of harm was clearly much less than with other Class A drugs such as heroin and crack. Although the immediate harms were not as severe as Class A drugs, the Home Secretary said that there were concerns about the long-term effects so it would consequently not be downgraded. Not much consolation to the many people in prison for up to 5 years for possession of ecstasy for personal use – an unlikely and unknown long-term possible health consequence is given as justification for an immediate destruction of liberty and livelihood.

4. Disproportionate penalitiesThe precautionary principle also fails to take into account the proportionate risks from drugs and the absolute level of risk that should be required to ban a drug. I have argued that some metric of harm developed in reference to other harmful behaviours e.g. horse riding, rock climbing or sun-tanning should be invoked as a threshold of risk to decide if any drug should be made illegal. Some argue that as illegal drugs have no value then there are no dis-benefits of banning them. The flaw in this argument vis a vis criminalisation has been made in Point 1.

5. Entrenchment of a flawed institutionalised moral position on drugs
Precaution is often either overtly or subconsciously based on the argument there are no benefits to the use of the drug so that it should therefore be made illegal. This argument reflects a biased and entrenched institutional position that the establishment and law makers alone understand costs and benefits and that drug users are all dependent, addicted losers. In fact, most people who use illegal drugs do so because they want to, NOT because they are addicted. For those for whom illegal drug use is a choice, benefits include relaxation, dancing, mind expansion etc; these are real benefits/motivators that should not be ignored by legislators

6. Encourages other drug useThe most costly and perverse consequence of the precautionary principle is that it encourages the use of legal drugs which are more harmful than the ones being banned. It can be argued that the epidemic of alcohol-related health harms that the UK is experiencing now is partly driven by people who might use drugs that are safer than alcohol, such as cannabis and ecstasy, being deterred by the risks of criminalisation and/or misinformation about the relative harms of these drugs, so are driven to drinking instead. It is seriously questionable whether there is any health justification for criminalising the use of drugs that are safer than alcohol. Punishing drug users – but not drinkers or tobacco smokers – to protect them and society from health harms is ineffective, uneconomic, morally indefensible and patently unjust. The growing use of cannabis in retired people in the USA when they no longer have to fear workplace drug-testing reflects the true deterrent effects of the law to limit free choice.

7. Blocks new drug discovery
The precautionary principle also limits the development of new drugs that might be safer than alcohol – such as alcohol alternatives – which would be subject to a much higher level of safety than alcohol itself.

8. Denies innovation and medical progress
Some drugs, particularly LSD, MDMA and psilocybin, were showing promise as therapeutic agents before they were made illegal. This research then stopped as a consequence and only now, 40 years on is being resurrected with very promising findings. The recent banning of mephedrone means that new antidepressants and other treatments e.g. for obesity and narcolepsy that might have emerged from that chemical series will now not happen. It is not that such drugs would necessarily be illegal but the regulatory and legal complexities of working in this chemical arena and the possibility that new drugs might be outlawed if legislation changes in the future provides too big a disincentive to the pharmaceutical industry.

Drugs present a variety of dangers to those that take them – however, using the precautionary principle as the basis for prohibition risks creating unnecessary harms without properly protecting users. If we are going to have a coherent and effective strategy to tackle the problems that drugs cause, removing the harms caused by the precautionary principle must be a priority.

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22 Responses to “Precaution or perversion: eight harms of the precautionary principle”

If only this could be put on the national agenda…. I think the younger generation really ‘gets’ these arguments. but unfortunately argument/point 5 is the real sticking point – many people particularly in the older generations view drug use as morally wrong, even though they consistently fail to demonstrate where exactly the moral problem with use of such chemicals lies.

This is exactly what is facing nicotine users globally. Non-tobacco recreational nicotine products such as electronic cigarettes are being banned with the argument that ‘we don’t know if they’re harmful’. In fact, hundreds of thousands are now denied safer and satisfying alternatives to smoked tobacco.

It really does appear that entrenched pharmaceutical company interests are making sure there is no competition to their markets.

Steve 7 I presume refers to synthetic alcohol on of Dave’s pet projects.

re 2 Very soon the government will have no argument left with cannabis we have moved far to deeply into receptor technologies now, what does infuriate me is the way the press still handled it referring a lot of the time to CB receptors and their accompanying chemicals as proteins. Every story the BBC has released on new drugs in the last few months for cancer all stem back to the endocannabinoid network and the way every cell in the body is effected by them.

Again with no 5 this comes down to Adult education on drugs not the childish attempts we have now, not to mention the confusion within the classification system.

However it was good to see Sativex on the news a great breakthrough but still far to expensive 2 oz of high grade medical strength bud can make a 6 month batch lot more for a lot less. this will do a lot to move some individuals out of the criminal justice system but again while it is licenced its still private or PCT approved so will cost £125 for 10 days treatment with it ‘average use’ far to much for the actual people that need it, with most of them on incapacity benefits or very low income.

NICE tell me they are waiting on the go ahead to run it through the system but i have already heard it will not be cost affective! cost affective to what it has no comparison on the NHS…

Very nice article Dave, we need to sell cannabis as proteins to the public along side vitamin C and cod liver oil for the joints….

David Nutt:
3. Steve – Sorry, I didn’t make myself clear in Point 7: the issue is that we apply much much higher thresholds for safety with new drugs than with old ones eg alcohol. This is recognised by the pharma industry which is why none of them have ever attempted to make an alcohol alternative since it would be subject to much higher regulation than alcohol itself. If we were serious in reducing the harms of drugs, then we would encourage pharma to make safer versions of popular drugs such as ecstasy. Sadly, there appears to be no political will to do this, which is why I think the ‘harm reduction’ justification taken by the government over cannabis and ecstasy reclassifications is really a smokescreen for their moral disapproval of recreational drug taking.

Govt’s are confusing precautionary principle with ‘principles of abstension’ a point I critiqued when I called the NZ Law Commission Report into drug “control and regulation” (May 2011) fraudulent for failing to resolve the tensions underlying cannabis prohibitions prefering instead to go with what it believes is politicaly saleable ‘a kinder gentler’ prohibition that fails Popper’s test, declaring emerging drug management as illegal until they are researched and declared ‘safe’.

yes moral disapproval of something most do not have a clue about.
I wrote to party leaders and the treasury last September about the classification of cannabis. I got 2 replies one from the treasury minister to say that it would not lead to higher street crime and that the price would be mostly affected, Mr Clegg wrote back saying they would look at the prediction for a 9 billion market for cannabis by the end of 2010.( i believe the ACMD agrees on the figure now)
The first minister hadn’t got a clue we now have dealers stabbing each other over a few ounces of cannabis and well old Cleggy just a case of oh… which is not good enough. as For old DaveC well we keep asking but he cant see the hemp for the cuts.

I would also like to say thank you for Community Criminal’s response. With regards to sativex and cannabis: You are very right. As a disabled sufferer who COULD benefit from sativex, I very much choose not to use it, nor could I or my GP practice afford it. I’ve made it my business to know cannabis and all of the research that comes with the subject as clearly you have too. An overnight industry that protects and regulates use within the disabled community could be vastly beneficial to the country as a whole. If you allowed people like myself and other interested parties to help those in dire need, we could forge a new way of life and relieve the country of our “benefit” problems. Although I look for work and outlets everyday, I am deemed unemployable; I have not deemed myself this of course.

Let the disabled population strive forth with a cannabis industry, we would be making sure good quality and tailored product was given to the right people, and let us who are a burden on society take our destinies into our own hands. On the numbers alone the country needs to address cannabis properly now.

Of course, much guidance would be needed, but with Professor Nutt and the ISCD out there, this blue-sky thinking of mine doesn’t seem such a pipe dream.

Of course, the PR with disabled people working together on a new and lucrative industry would soften the moral compass of the right wing media.

Your Welcome Home Grown Outlaw, Im sat in the house today when I realy should be doing stuff but with no CBD’s today is rather manic and I can’t afford to go buy any not that 2 grams goes very far when the bud is cut a few weeks early to meet the street demands.
Id grown myown but as Im part of a community group dealing with the problems of drugs in our community its a little hard to get away with, especialy as local police call quite often for updates etc.

One thing you have missed is legalisation could actually reduce cannabis usage after the initial surge in use due to legalisation.

Once the thrill of taking an illegal substance has been removed the substance would become less appealing.

Isn’t this what’s happening in Holland as it is seen to be boring pastime.

My GP is happy to prescribe me strong painkillers and anti-depressents like smarties but won’t do Sativex because of the cost & with the job I have I cannot risk a record for possession/cultivation as I would be dismissed.

I keep being reminded of the quote “For the majority of Canabbis users the worst side-effect is being caught”.

Thanks for the clarification David. that all makes sense. I guess its rather like the way that various nicotine deliver products (like e cigarettes) and smokeless tobacco products are more heavily regulated (snus is banned in most of the EU) than smoked tobacco which is far more dangerous.

Community Criminal, I can quite understand your ambivalence. It is a sad state of affairs we are all in when we have to watch our backs whilst helping- genuinely helping- the community and break ties with the criminal elements of society. By abiding by morals, you face further persecution. History will have a differing view of how our modern times were run; this I am sure of. Hindsight will have the last word with drug policy.

HGO – I spotted that on the LCA website and with the cost of Sativex and other CBD/THC based medications and synthetic alternatives for other drugs I’m beginning to think that part of the governments stance on prohibition has nothing to do with the morallity or dangers of illegal drugs and more to do with the amount of money the large pharmicutical companies pay to party funds & lobbying groups.

David – I fear the argument for scientific reasoning for a true “Harm based” drugs policy will fall on ears plugged with cash from GW pharmacuticals etc….

Dave, your arguments would carry more force if your own terminology was consistent with the Misuse of Drugs Act 1971, eg use ‘controlled drugs’ rather than illegal drugs. The fact is the Act regulates human behaviour and cannot make any drug illegal. Thus, it is human liberties that are trod on by the precautionary principle. And whilst the Act does not effectively control drugs, they won’t behave, it does provide a very smart mechanism by which a properly regulated drug commerce can manage both harms and benefits. It’s a shame that the Secretary of State and most who write on this topic are not aware of the flexible possibility of ss7(1)-(2), 22(a)(i) and 31(1)(a) when read together.

If by s31(1)(a) re ‘General provisions as to regulations’ the Secretary of State ‘may make different provisions in relation to different controlled drugs, different classes of persons, different provisions of this Act or other different cases or circumstances’ and by s7(1) re ‘Authorisation of activities otherwise unlawful under foregoing provisions’ the Secretary of State, may make ‘provision as (s)he thinks fit for the purpose of making it lawful for persons to do things under which any of the following provisions of this Act, that is to say sections 4(1), 5(1) and 6(1), it would otherwise be unlawful for them to do’, then i should be able to buy a clean unadulterated MDMA tablet or three from Boots for my weekend if the Secretary of State, the ACMD and the Parliament thought that would reduce or eliminate ‘Ecstasy’ fatalities and other ‘harmful effects sufficient to constitute a social problem’, s1(2), more effectively than a blanket prohibition of some but not all ‘dangerous or otherwise harmful drugs’. Don’t you think we should be encouraging the people to see that the Act drafters foresaw the possibility of a completely and wisely regulated controlled drug commerce.

A great piece David. As a regular user of controlled/illegal substances for 20 yrs(half of my life) the issues surrounding the legislation has always interested me. In the mid 90’s I spent a year and a half as a guest of her majestys prison service. I was convicted of possession of ecstasy with intent to supply. The only evidence on offer of supply was the quantity I had (35). I have to add that cannabis is and always was my first choice, but i used ecstasy, cocaine, Amphetamines, LSD in fair quantities during the 90’s. I have tried just about everything else available including heroin (too nice and therefore too dangerous) DMT (too mad) Khat (horrible taste). Since 2000 cannabis is the only substance that I use regularly, although I find it hard to turn downa line of cocaine if it is offered. Throughout the last 20 years I estimate that I have consumed maybe 20 units of alcohol per year.

What I am interested in is the lobbying power that companies have and use to influence policy in the UK. For instance it is widely believed that were medical cannabis available at a reasonable price it would shelve 90% of arhritis treatments (to name one). Also if the coffee shop culture was adopted it would seriously impact on the profits made by the alcohol companies. (Anyone else find it strange that Tesco came out in support of a minimum price for alcohol, yet while the world cup is on they are advertising 3 boxes of beer for £15)

I believe that the alcohol and pharmaceutical companies are desparate for cannabis to remain criminalised because of the financial implications of a large percentage of their customers (addicts) shunning their product for a better product that works more efficiently and with relativley few side effects.

What I would like to see is all of the above substances classified into either medical or social categories (obviously substances can be in both categories ie cannabis and MDMA). Doctors should be able to prescribe substances on the medical list, such as cannabis for arthritis, MDMA for counselling purposes, heroin and cocaine for addicts (because let’s face it methadone isn’t working).

All of the drugs on the social list should be available from licensed suppliers such as pubs and off-licenses. If people want to take cocaine or speed or ecstasy or cannabis, they can purchase a taxed product, of good quality from a reliable source. The UK is able to produce all of the substances cleanly and at a great profit.

When the issue of availability and quality has been dealt with it would not, in my opinion, be a moral problem to punish unlawful sales of these substances in a similar way that production and sales of illegal alcohol spirits is dealt with. In the same way that home brewing of beer is allowed, so should home cultivation of cannabis.

The financial implication to the government in this their hour of need would be most welcome. Firstly the income from the licensed premises and in duty would be huge. Secondly the money spent by the govt. on policing and the court and prison systems would fall significantly in this area. Third, we have to look at how the crimnalisation of drugs affects addicts. I have no figures, but there is a huge amount of personal property stolen in order to feed habits. I am sure that the regular heroin addict hates having to go out on the streets and steal just to ‘get by’. If all of these addicts could go to their gp and be prescribed their substance, I am sure that a huge percentage of these thefts would not happen. This then impacts on the insurance business in a positive way which would then (hopefully) impact on the general public.

I have a fairly extensive criminal record in the UK, all for posession of cannabis (excepting the prison sentance mentioned earlier). Because of this I and most of the people I know are wary of the police. I have no issue per se with the forces of law and order except for the fact that if they stop me (or enter my house) they are going to arrest me and cause me grief. Most of the police who I have had the pleasure of dealing with agree with me that dealing with me is a waste of their time and resources.

The Government has been forced to release their suppressed Review of the UK’s Drugs Classification System consultation paper in which section 6 says that alcohol and tobacco cre more harmful than ecstasy and such! Just like you said Dave and just what you got sacked for:

Help needed for UK documentary
My name is Bart and I’m part of a small team making a new observational documentary about Cannabis for BBC3.

We are very keen to talk to a wide range of young people who use the drug and are passionate about i…t…. Whether you smoke it for medicinal reasons or just for fun and relaxation, I’d be keen to hear from you. I’m also looking to speak to home growers or even guerrilla growers who grow small amounts to provide themselves and friends with a supply so they can cut out the dealers.

Our film will explore what it’s like to be a young cannabis user in Britain today. We want to show the truth, and not the usual stereotypes that other parts of the media often portray. Hopefully with the help of genuine users, growers, and other young people who smoke cannabis recreationally we can reflect more accurately what the ups and, admittedly in some cases, the possible downs of using cannabis can be like.

I can assure you this film will be intelligent and thoughtful. We want to give young cannabis users the chance to have their thoughts and feelings expressed in a fair and balanced way. I’m also aware that when it comes to filming some people might prefer to remain anonymous, which is certainly something we’d be happy to consider given the legal situation with growing and using cannabis in Britain today.

We will be filming later in the year. Right now I’m very keen to hear from anyone who wants to know more about the documentary and is happy to share their personal experiences with me. Let me stress, however, that having a chat does not mean you have to take part in the actual programme.